Expanding the Discussion about Your Freedoms

While it may seem obvious to those of us who live here and sometime take our freedoms for granted, what makes the United States of America such a great place to live is that the design of our government and legal system is based on the protection of freedoms.  The founding fathers recognized, because of their recent violent fight with a tyrannical government, that authority will always seek more authority over the governed.  Therefore, the only government that stood a chance of respecting the freedoms of individuals was one built first on principles that outlined those freedoms.

In the past, this blog has concentrated primarily on debt relief and bankruptcy.  While you might not necessarily associate that subject with other fundamental freedoms, bankruptcy is one of the oldest laws in the United States, and was included in the original 1787 draft of the U.S. Constitution. In fact, the originating language is older than the Bill of Rights. The Founding Fathers recognized that a system of laws was necessary to protect the “honest but unfortunate debtor”, and such laws were in the general interest of the country and its citizens.

While we will continue to cover bankruptcy news and provide information about options for obtaining financial freedom, we will also begin including posts on this blog specific to other freedoms provided for by our Constitution and Bill of Rights.  We hope that you continue to frequent our site for news about financial freedom, criminal defense rights and protections, and freedom from infringement on the individual right to bear firearms.  We also invite you to leave your thoughts and join the debate in the comments section of our posts.

Many people are proud to stand up for, and take advantage of, their constitutional protections – and they should be. From its original incarnation and its amendments over the years, such protections have become the cornerstone of our society, our government and our way of life.

Chipping Away at the Defense of Marriage Act: Is a Joint Petition for Bankruptcy on the Way in Massachusetts for Same-Sex Married Couples?

UPDATE: On June 26, 2013, the Supreme Court of the United States declared in United States v. Wilson, that section 3 of DOMA (the "defense of marriage act") is unconstitutional.  Read our analysis of what this changes: SCOTUS decision on DOMA affects Joint Bankruptcies

ORIGINAL POST:

The Defense of Marriage Act (DOMA) dictates how federal law treats same-sex marriages, by defining marriage as between one man and one woman. DOMA does not forbid states from allowing same-sex couples from marrying, but does limit same-sex married couples from accessing the same federal benefits afforded their opposite-sex counterparts.

There are over eleven hundred federal statutory provisions in which marital status is a factor in determining or receiving benefits from the federal government.  For example, DOMA prohibits a same-sex married couple from filing a joint federal income tax return.

In the field of bankruptcy, DOMA not only forbids a same-sex married couple from filing a joint petition (thereby saving hundreds of dollars in filing fees, as well as losing some of the ease of joint financial planning by dealing with joint debts together), but it also prevents a spouse's or former spouse's claim against the petitioner from being given priority (basically, a debt held by a spouse or former spouse in an opposite-sex marriage is treated as a more important creditor to be paid off, where a same-sex spouse or former spouse is treated as a less-important creditor to be paid off).

In California, a same-sex married couple tried to file a joint Chapter 13 petition for bankruptcy. When the bankruptcy trustee moved to dismiss their petition because of their marriage, they appealed, and the Bankruptcy Court for the Central Division of California ruled that denying the couples' petition violated their equal protection rights guaranteed by the Fifth Amendment. Interestingly, the opinion was signed by twenty of the twenty-four judges in the Central District of California, although the case was heard only by Judge Thomas B. Donovan, sending the message that the bankruptcy judges in the Central District of California believe (well, most of them at least) that the application of DOMA to prevent a same-sex couple from filing for bankruptcy is unconstitutional.

This does not mean that other states will have to follow suit. However, a case in New York was decided along the same lines, and one can only assume that other states will begin to address the issue. Massachusetts has not yet dealt specifically with the issue of same-sex married couples filing a joint petition for bankruptcy, although two separate cases in Massachusetts federal court have ruled that DOMA is unconstitutional.

Kelsey & Trask, P.C. understands that not everyone wants to be a constitutional test case, and for some, operating within the restraints of the law, no matter how unfair, is better in the short term than changing the legal thinking of an entire system. We recognize the limitations and restrictions presented by DOMA. While we cannot extend all benefits of a joint filing, we do recognize and support the same-sex community.

If you need assistance in the bankruptcy court, we will not charge you as separate clients; rather, we will charge the same fee as we would any married couple. We will also do our best to ensure your cases are presented to the same trustee, and remain in front of the same Judge, by filing them simultaneously (giving them the best chance to be in front of the same trustee and Judge).

Joint filings were created in order to protect the family unit and allow for collective financial planning. While federal law currently chooses to deny same-sex married couples from such federal benefits, we have chosen to treat same-sex married couples with the same dignity and treatment as their heterosexual counterparts. It is not a perfect solution, but if it helps your family to get a fresh start, we don’t want you to go alone.